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Getting married under customary law

The Recognition of Customary Marriages Act (RCMA) became law on the 15 November 2000. If you were in an existing valid marriage under customary law before this date, your marriage is recognised under this new law. When a husband already had more than one wife under customary law all of those marriages are recognised under this new law. This Act regulates customary marriages entered into after this Act came into operation and states the rules that the people getting married under customary law must follow in order for their marriage to be recognised.

The RCMA recognises all customary marriages that were valid under customary law. This includes those marriages that were regarded as invalidated by the Black Administration Act. Further, customary marriages under the Transkei Marriage Act (TMA) could co-exist with a civil marriage out of community of property, all those marriages, if they were valid under the TMA they are recognised by the RCMA.

In terms of section 4(3)(a) of the Act, customary marriages entered into before the commencement of the Act, which are not already registered in terms of any other law, had to be registered within a period of 12 months after the commencement of the Act, or within such a period as the Minister may from time to time prescribe by notice in the Gazette.

Section 4(3)(b) of the Act provides that marriages entered into after the commencement of the Act must be registered within a period of three months after the conclusion of the marriage or within such period as the Minister may from time to time prescribe by notice in the Gazette.

In terms of Notice No. 1000, published in Government Gazette 38290 dated 12 December 2014, the period in terms of which a customary marriage could be registered in terms of both 4(3)(a) and 4(3)(b) of the Act was extended up to 31 December 2016.

Proving the existence of a customary marriage that has not been registered, can pose a problem to both the executor in an estate as well as the Master when an estate is reported, especially when the existence of such marriage is being disputed by interested parties. It is for this reason that the Master usually insists on proof of registration of a customary marriage. This will impact on the eligibility to inherit from an estate. Registration of a marriage is fundamental to the protection of the rights of women and children in customary marriages.

A customary marriage is recognised if people getting married under customary law have complied with the following requirements:

According to section 1 of the Act ‘customary marriage’ means a marriage concluded in accordance with customary law, while ‘customary law’ means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples. The Act does not apply to customary marriages concluded by African people outside of South Africa.

Both parties to the marriage must be above the age of eighteen years.

Both parties must consent to being married under customary law.

The marriage must be negotiated, celebrated and entered into in accordance with customary law.

Lobola is not a necessary requirement for the validity of the customary marriage, however, if it is paid, it proves that the marriage was negotiated in accordance to custom. (Note that these marriages have always been recognized under customary law).

When should I register my marriage?Even though not registering the customary marriage does not invalidate the marriage where there is one husband and one wife, it does invalidate the marriage if the husband is marrying a second wife after the commencement of this Act. Therefore, registration is encouraged as it constitutes prima facie proof of the existence of a customary marriage. After the coming into effect of the RCMA, all marriages, those entered into prior to or post 15th November 2000 must be registered with the Department of Home Affairs. If you were married after the law was passed, you should register your marriage within three months after the marriage.

Note: Non-registration of a customary marriage where there is one husband and wife does not invalidate the marriage, however, non-registration of a subsequent customary marriage invalidates the customary marriage.

Customary Marriages and Community of Property
All customary marriages where there is one husband and one wife whether entered into prior or after the coming into operation of the Act are in community of property (Gumede v President of the Republic of South Africa 2009 (3) BCLR 243 (CC). This means that the husband and wife have an equal share in the assets, money and property and also means that they share all the debts. If the parties would like their marriage to be out of community of property they will have to enter into an ante-nuptial contract prior to getting married. If they want to change after they are already married they will have to apply to the High Court.

Under the RCMA the wife has equal right and status with the husband to decide what happens to the property. A customary wife now has the capacity to enter into a contract without the assistance of the husband.

What if my husband wants to marry another wife?
The husband must enter into a written agreement / contract which will state what should happen to the property and then the husband must apply to the court to approve the written contract. The court has to make sure that all the property interests of all wives are protected.

What if we want to enter into a civil marriage after marriage under customary law?
If your husband has no other wives, you can get married under civil law as well as customary law. However, neither of you will be able to enter into customary marriages with anyone else while you are married to each other under civil law.

Requirements for a valid customary marriage
The general requirements for a valid customary marriage entered into after the commencement of the Act are as follows:

The prospective spouses must both be above the age of 18 years;

They must both consent to be married to each other under customary law; and

The marriage must be negotiated and entered into or celebrated in accordance with customary law.

If either of the prospective spouses is a minor, either his or her parents, or if he or she has no parents, his or her legal guardian, must consent to the marriage. If there is no legal guardian, the Act provides for substitute consent.

The parties must not be prohibited from marriage because of relationship by blood or affinity as determined by customary law.

In addition to the above requirements, a husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of the Act, must comply with a further requirement set out in section 7(6) of the Act, namely an application to the Court to approve a written contract which will regulate the future matrimonial property system of his marriages. Non-compliance does not render the subsequent marriage null and void, but will render it to be a marriage out of community of property. In the case of Mayelane v Ngwenyama and another (Womens’ Legal Centre Trust and others as amici curiae) 2013 (8) BCLR 918 (CC) it was confirmed that the husband must obtain the consent of the first wife before he may enter into a further customary marriage. Failure to do so will render the further marriages automatically as out of community of property.

A party to a civil marriage cannot validly enter into a customary marriage with another person while the civil marriage exists.

Steps to follow

Registering customary marriages

Customary marriages must be registered within three months of taking place. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.

The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:

the two spouses (with copies of their valid identity books and a lobola agreement, if available)

at least one witness from the bride’s family

at least one witness from the groom’s family

and/or the representative of each of the families

In the event that the spouses were minors (or one was a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.

Customary marriages are registered by completing BI-1699 and paying the required fees. An acknowledgement of receipt BI-1700 will then be issued by the Department of Home Affairs.

Registering more than one customary marriage
If a male person is already in a customary marriage and wishes to enter into another customary marriage he has to, at his own cost, get a court order from a competent court which will regulate his future matrimonial property system.

It is also possible for a male person who is already in a customary marriage to enter into a civil marriage with the current customary wife. They should follow the normal procedure for civil marriages. A spouse in a customary marriage cannot enter into a civil marriage with another woman.Divorce under the RCMA
Only the court of law can grant a divorce decree and the ground of divorce is the fact that the marriage has broken down to an extent that it cannot be restored.

Custody of children under the RCMA
The court will decide on the custody of children based on the best interest of the children not who paid lobola.